The proposed Domestic Violence Bill appears to have made little progress since Frances Fitzgerald published heads in July. The Bill would have closed a glaring oversight in Irish domestic violence law which I have written about before. As Irish law stands, domestic violence orders are granted in private court sittings but breaches are prosecuted in open court with no reporting restrictions. With a general election looming the Bill is unlikely to be passed by the current Oireachtas, raising the likely prospect that this damaging loophole will persist for years to come.

[T]he Sligo Weekender … reported on a case before the District Court in which a man was charged over an altercation with his estranged partner. The newspaper named the couple and said they had two children, whose ages were given. No reporting restrictions appear to have been imposed by the Judge, and the children featured in the evidence.

The case involved a prosecution for the breach of a safety order. Like all family law cases, applications for safety orders are heard in private court sessions with only the parties and their lawyers present, along with the judge and court clerk. The order itself, if granted, is served on the respondent and the local Gardaí, but no-one else finds out about it. However, breach of a safety order is a criminal offence and is prosecuted in open court.

The mother in the Sligo case wrote a letter to the Sligo Weekender saying that

printing both parents’ names and the children’s ages was the same as printing the children’s names.

The Press Ombudsman upheld two grounds of her complaint: that it breached the Code of Practice in relation to privacy and the rights of children.

An account of the court proceedings could have been published in the public interest and at the same time the right to privacy of the children could have been protected. By naming the parents of the children and giving their ages this did not happen. The newspaper in its defence said that the judge had not imposed any restrictions on court reporting. However it is my understanding that the protection of children applies in all instances and that there is no requirement on the judge to draw this to the attention of any journalist present in court …

By publishing the names of the children’s parents and their ages the newspaper failed to have regard for the vulnerability of the children. The Court and Civil Law (Miscellaneous Provisions) Act 2013 permits journalists to attend and report on family and child law proceedings provided the anonymity of any children involved is protected. In the report in the Sligo Weekender the anonymity of the children was not protected and therefore there was a clear breach of [the Code]. It is not my function as Press Ombudsman to determine if the 2013 Act was breached, my function is only to make a decision on any breach of the Code of Practice.

This analysis is problematic as the understanding referred to in relation to the protection of children is unclear. It may relate to the later reference to the 2013 Act, but that legislation deals with reporting on family and child law proceedings. The prosecution of a breach of a safety order involves criminal proceedings, not family or child law proceedings (despite the fact that the order itself originates in family law proceedings). The Ombudsman rightly states that it is not his function to make a determination on the 2013 Act, only the Code of Practice, but the overlap and conflict between the Code and ordinary court legislation is unhelpful and creates ambiguity.

While it is not uncommon for judges to make reporting restrictions in cases of this nature, there is no legal basis for doing so and I expect that any such restrictions could be successfully challenged. Indeed, the Ombudsman’s comments protect only the right to privacy of the children and not their mother. Local newspapers, meanwhile, tend to treat such cases sensitively and sometimes publish anonymised accounts of proceedings or do not publish a report at all.

We now have a totally unacceptable situation where there is specific legislation which addresses domestic violence and court reporting of proceedings generally, both of which permit reporting of cases of this nature. The only redress available to a victim wishing to preserve their privacy is to make an after-the-fact complaint under the non-statutory code of a self-regulating press. If a similar complaint were to arise again or be appealed to the Press Council the outcome is not certain. After all, the arguments made by the Sligo Weekender in this case were, on the basis of current law, correct.

There is an argument for publicising domestic violence cases as the lack of coverage of domestic violence generally in Ireland tends to distort public perception of the true scope of the problem. However, the decision as to whether or not the parties should be identified publicly should, in my view, always remain with the victims, as is the case with sexual offences. The reality of domestic violence is that the victims might often take a considerable time to both realise what is happening and to seek help. There are legal options available under the Domestic Violence Act with varying consequences and victims should always be encouraged to avail of them. However, the fact that breach of a domestic violence order can result in a victim’s deeply personal circumstances being fully reported on leads to a natural hesitance on the part of victims to push prosecutions and, sometimes, to even apply for a domestic violence order to begin with.

The change needed to the law is minor and uncontroversial. The slow pace of introducing it is, perhaps, just another symptom of the way in which legislative reforms are made in Ireland. This reporting loophole could easily and more appropriately have been closed by including a provision in the 2013 Miscellaneous Provisions Act but was instead put on the long finger of a consolidated act.

It has taken almost 20 years but the Government is finally to close the anonymity gap in domestic violence cases. I wrote about the issue in 2012.

Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it.

The reason for my post three years ago was that I had written to then Minister for Justice Alan Shatter to ask if this loophole would be changed. His response was that a miscellaneous provisions bill would change the law to provide for anonymity in domestic violence prosecutions.

Since then there has been a change of minister and a change of approach. Frances Fitzgerald recently published draft legislation which will, if passed, consolidate and amend the existing Domestic Violence Act.

This legislation would protect the anonymity of victims in much the same way as victims of sexual offences are protected. Prosecutions for breach of domestic violence orders would still take place in open court but the media would be restricted from identifying the parties (including their children) and will be guilty of an offence if they do identify the parties.

The draft does not mention a right of a victim to waive anonymity following conviction of the offender. It does say that the judge may, if the “interests of justice so require”, direct that certain information can be published and this does appear to provide for the possibility of a victim requesting the judge to direct the publication of the defendant’s name but the decision would rest with the judge.

This small amendment is one that is overdue for victims of domestic violence. However, the fact that the legislation is only at heads of bill (draft) stage suggests that it may take some time to be passed and is unlikely to become law during the lifetime of the current Dáil.

Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.

The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will

includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact

Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.

While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications.

The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.

There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.

Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.

More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.

Domestic violence victims can seek a range of orders under the Domestic Violence Act 1996 which, it is hoped, give additional protection from violence. Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

I can find no policy justification for the existing law and it appears to be a loophole: no-one thought to say, by the way, if an order is breached the prosecution should take place in camera. Because of the risk of publicity, it is unsurprising that victims of domestic violence often do not wish to appear as a witness for the prosecution. In a worst case scenario, the very mention of potential media publicity can discourage a victim from even seeking an order in the first place.

It is entirely unsatisfactory for victims of domestic violence to be put in the position where they will not participate in a prosecution or report a breach due to fear of adverse publicity. Publicity does not only affect the victim but also children, who are often involved in episodes of domestic violence. Even if they are not involved the victim is likely to be conscious that the children may be old enough to learn of case reports in the local paper. Victims, rightly or wrongly, may still wish to protect an abuser’s reputation for the good of the wider family and the publicity involved in prosecutions will discourage them from reporting a breach or appearing as a witness.

Despite the fact that newspapers can report breach prosecutions, reports rarely appear. I don’t have statistics on prosecutions, but they seem to result from only a small fraction of the number of domestic violence orders granted. It is hard to avoid concluding that the risk of publicity is a factor. I recently reviewed the available statistics on domestic violence orders since 2001 and was struck by the following:

from 2001 to 2010 there was a decrease of approx 24% in numbers applying for orders under the 1996 Act;

the greatest reduction in applications was for barring and interim barring orders, down approx 39% and 54% respectively.

The 2011 annual report of the Courts Service shows an increase in applications for domestic violence orders in that year as compared with 2010 but the overall trend over the past 10 years has been downward. There may be many reasons for the dramatic decline in applications under the 1996 Act but the reluctance to prosecute breaches must be having a knock-on effect on the willingness of victims to go to court for an order in the first place.

In August, I wrote to the Minister for Justice asking if this loophole would be closed. Today I received a reply: it will.

[The 2010-2014 National Strategy on Domestic, Sexual and Gender-based Violence National Strategy] addresses the improvement of legislative provisions to protect victims of domestic violence. Among the proposed improvements is an amendment to s.17 of the Domestic Violence Act 1996 to provide for the anonymity of parties to proceedings for breaches of orders made under the Act. The proposed amendment is expected to be included in a Criminal Justice (Miscellaneous Provisions) Bill which is presently with the Attorney General’s Office.

Labour is committed to tackling and eradicating domestic violence. We will protect funding for frontline services, such as family refuges …

That was 9 months ago. Three weeks ago, the Minister for Justice said in the Dail:

all reasonable efforts will be made by my Department to continue supporting the provision of services dealing with domestic and sexual abuse within available resources.

Now, the defence of this cut will be that it does not affect frontline services: SAFE Ireland doesn’t provide them. And, to be fair to Minister Shatter, the cut was not made by his department but by one run by a party colleague. Nevertheless, the work of SAFE Ireland was important and the funding not excessive. In fact, the move by the HSE appears to be a redirection of funds rather than a full cut. According to the director of SAFE Ireland:

[The HSE] say they are going to use the money instead to commission a number of pieces of work towards the implementation of their action plan on domestic violence.

SAFE Ireland is part of the implementation infrastructure for the delivery of the government strategy on domestic, sexual and gender based violence.”

This may be the shape of things to come: the economic environment used as justification not only for cuts in funding to NGOs and service providers who rely on State funding, but also as justification for the redirection of remaining funds to consultants and in-house services.